Jones v. Inhabitants of Waltham , 58 Mass. 299 ( 1849 )

Metcalf, J.

The evidence in this case was, that the pit, into which the plaintiff fell, “ was wholly outside of the highway, and came up to the line of the highway.” The only ground, then, upon which the town can be held liable to this action, is, that there was a dangerous place on the roadside, which required a fence or barrier, to make the road safe for travellers, as in case of a bridge, causeway and the like. But when a town has no power or right to erect such fence or barrier, it is not answerable for the consequences which follow from the want of it. In the present case the town had no authority or right to erect a barrier which should obstruct the railroad; but it “ had maintained and kept up a sufficient and proper barrier and railing, up to the railroad, and as far as it could be maintained without impeding the passage of the cars on the railroad.” The defendants, having done all that the law required or permitted them to do, are not answerable to the plaintiff, either on the statute, or on the principles of justice,

If the railroad corporation acted within the scope of their lawful authority, in making the trench, or cattle guard, and in the manner of constructing their track by its side, then the plaintiff has suffered from an accident which happened from an authorized public work, and has no legal remedy. If the railroad corporation have exceeded their authority, or have not constructed and guarded their track, as the law directs, and have placed a nuisance in the highway, then they are liable to indictment, and any person who suffers a peculiar and special damage therefrom, may recover compensation by civil action against that corporation.

Judgment on the verdict.